Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McDowell v. Burlington Northern Santa Fe Railway Co.

United States District Court, D. Montana, Great Falls Division

January 30, 2017

TIMOTHY S. McDOWELL, Personal Representative of the Estate of SUSAN K. McDOWELL, Deceased, Plaintiff,
v.
BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a Delaware for Profit Corporation; BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware for Profit Corporation; GREAT NORTHERN RAILWAY COMPANY, a Corporation for Profit; ROBINSON INSULATION COMPANY, a Montana Corporation; STATE OF MONTANA, a Governmental Entity; LIBBY SCHOOL DISTRICT #4, ASA WOOD ELEMENTARY SCHOOL; and DOES A-Z, Inclusive; Defendants.

          ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS

          Brian Morris, United States District Court Judge

         Plaintiffs moved to remand this case to the Eighth Judicial District of the State of Montana, after Defendants removed the case pursuant to 28 U.S.C. §§ 1441(a) and 1446. (Doc. 13.) United States Magistrate Judge John Johnston issued Findings and Recommendations in this matter. (Doc. 29.) Judge Johnston recommended that the Court grant Plaintiff's motion to remand because complete diversity does not exist between the parties and the United States District Court does not have jurisdiction over this case. Defendant Burlington Northern Santa Fe Railway Company (“BNSF”) filed objections. (Doc. 30.) The Court reviews de novo findings and recommendations to which objections are made. 28 U.S.C. § 636(b)(1)(C).

         I. BACKGROUND

         Plaintiff, Timothy McDowell, is the surviving spouse of Susan McDowell and acts as personal representative of her estate. Mrs. McDowell lived and attended school in Libby, Montana. Plaintiff alleges that she was exposed to hazardous quantities of asbestos-contaminated vermiculite that was discarded from railcars as BNSF transported the material from a mine near Libby, through the community, and on to various destinations throughout the United States. (Doc. 5 at 6.) Plaintiff alleges that one of the locations where Mrs. McDowell came into contact with asbestos-contaminated vermiculite was at her school, Asa Wood Elementary School. (Doc. 5 at 39.)

         Plaintiff alleges that all of the asbestos contaminated vermiculite that Mrs. McDowell was allegedly exposed to originated from the mine located near Libby. The State of Montana (“the State”) began conducting inspections of the mine in the 1950's. Plaintiff alleges that in the course of these inspections, the State determined the vermiculite contained hazardous levels of asbestos yet took no meaningful action to correct the hazard or warn the townspeople of Libby. (Doc. 5 at 8, 11-17.) On May 6, 2011, doctors diagnosed Mrs. McDowell with mesothelioma, a rare cancer most often caused by exposure to asbestos. Eighteen months later, Mrs. McDowell succumbed to the disease. Plaintiff filed this Complaint against BNSF and other defendants, including the State and the Libby School District, alleging each committed torts that led to his wife's death.

         II. DISCUSSION

         BNSF objects to Judge Johnston's conclusion that the Montana state court should decide whether the State was properly joined. (Doc. 30 at 3.) BNSF further objects to Judge Johnston's rejection of fraudulent misjoinder as a basis for removal. Id. BNSF finally objects to Judge Johnston's finding that the State is more than a nominal party in this matter. Id. BNSF requests the Court decline to adopt the Findings and Recommendations, deny Plaintiff's motion for remand, and sever and remand or dismiss Plaintiff's claims against the State. Id.

         A. Diversity Jurisdiction

         BNSF asserts that this Court has subject matter jurisdiction under U.S.C. § 1332 on the basis of diversity of parties. Plaintiff disputes diversity, noting that the State remains a party to this action.

         A strong presumption exists against federal jurisdiction over cases removed from state courts. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal maintains the burden to establish removal is proper. Id. Courts must strictly construe the removal statute. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). If any doubt exists that removal is proper, courts must remand. Id.

         Removal in this case is proper only if there is complete diversity of citizenship-meaning each plaintiff is a citizen of a different state than each properly joined defendant. 28 U.S.C. § 1332; Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “When an action is removed based on diversity, complete diversity must exist at removal.” Gould v. Mutual Life Ins. Co. of New York, 790 F.2d 769, 773 (9th Cir. 1986). The State is a party in this action. A state has no citizenship and therefore cannot have diverse citizenship for purposes of diversity jurisdiction. Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376, 1381 (9th Cir. 1988).

         Due to the State's presence as a defendant, complete diversity did not exist at the time this case was removed. BNSF asserts that this Court can find diversity in this case because the State was improperly joined, is a nominal party, or was fraudulently misjoined.

         B. Improper Joinder

         BNSF asserts that Plaintiff's claims against the State and against BNSF fail the permissive joinder test under Fed.R.Civ.P. 20. (Doc. 30 at 9.) A plaintiff may properly join multiple defendants in a single action if the plaintiff's claims against them arise from the “same transaction, occurrence, or series of transactions or occurrences” or share a common question of law or fact. Fed.R.Civ.P. 20. This liberal joinder standard promotes trial convenience and judicial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.